COURT OF APPEAL FOR ONTARIO

Date: 2005-01-12

Docket: C41398

Re: Jacques Benquesus, also known as Jack Banks (Plaintiff/Appellant) -and- Proskauer, Rose, LLP, The Estate of Edward Brodsky, Sarah Gold and Karen Clarke (Defendants/Respondents)

Before: Catzman, Lang and LaForme JJ.A.

Counsel: Messod Boussidan, for the appellant Patrick J. O’Kelly and Bradley M. Davis, for the respondents

Heard and Released Orally: January 10, 2005

On appeal from the judgment of Justice Erwin W. Stach of the Superior Court of Justice dated January 26, 2004.

ENDORSEMENT

[1] This is an appeal from Stach J.’s decision holding that Ontario was neither the appropriate nor the convenient jurisdiction for the determination of Mr. Banks’ legal malpractice claim against the New York law firm of Proskauer, Rose, LLP and against individual members of that firm.

[2] The appeal primarily raises the issues of jurisdiction simpliciter and forum conveniens.

[3] On the issue of jurisdiction simpliciter, in his primary argument, Mr. Banks says Ontario should assume jurisdiction because the New York courts have declared that they will no longer hear Mr. Banks’ claim. In those circumstances, says Mr. Banks, it would be unfair to him if Ontario did not assume jurisdiction and that, in that case, he would lose a juridical advantage.

[4] It is important, however, to consider the facts underlying the New York court’s decision. The context is unusual. It is unusual because Mr. Banks did not commence the Ontario action until after the New York court precluded him from continuing with his New York litigation. The New York court precluded the continuation of that litigation because Mr. Banks repeatedly and persistently failed to follow orders of the New York court.

[5] That finding was based on Mr. Banks’ failure to appear for depositions and failure to take other steps required by the New York court. As a result, the New York court, to use Canadian parlance, stayed his proceedings until he obeyed the court’s orders. In the end result, after a number of appearances and appeals, the New York court held Mr. Banks’ claim to be res judicata.

[6] Accordingly, this is not a case where the New York court declined jurisdiction, but rather one where it has already both assumed and exercised that jurisdiction, a jurisdiction to which Mr. Banks attorned.

[7] In those circumstances, the motion judge was entitled to take into consideration that Mr. Banks was “effectively asking the Superior Court of Ontario to adjudicate on the fairness of a process Banks participated in before courts at two levels in the United States but is now unhappy with the result.”(para. 32)

[8] In careful and thorough reasons, the motion judge applied the Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 factors to the facts of this case and, in our view, properly concluded that there was no real and substantial connection between the case, the parties, and Ontario.

[9] Further, on the issue of forum conveniens, the motion judge considered the relevant factors and properly concluded that New York was the convenient forum for the determination of the issues in the litigation.

[10] Accordingly, the appeal is dismissed. As the respondents were successful, they are entitled to their costs fixed in the amount of $18,000.00, inclusive of G.S.T. and disbursements.

Signed: “M.A. Catzman J.A.” “S.E. Lang J.A.” “H.S. LaForme J.A.”